Can I Send Unsolicited Commercial Text Messages?

This week I address a very practical question for businesses looking for innovative marketing channels: when is it lawful to send unsolicited text messages–or what those of us who receive them call spam?

The answer comes from a handy guide published by the Federal Communications Commission.  It discusses the impact of two federal statutes–the Telephone Consumer Protection Act (TCPA) and the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act–as well as FCC regulations adopted to enforce those acts.

The TCPA and related rules presumptively ban text messages sent to a mobile phone using an autodialer. The only way to get around this prohibition is if (1) the recipient previously gave consent to receive the message, or (2) the message is sent for emergency purposes. This ban applies even if the mobile phone number is not on the national Do-Not-Call list.

The CAN-SPAM Act bans unwanted email messages sent to your mobile phone if they are “commercial messages.” These are defined as messages that primarily advertise or promote a commercial product or service. The FCC’s ban does not cover “transactional or relationship” messages–that is, notices to facilitate a transaction the recipient has already agreed to.  For example, messages that provide information about an existing account or warranty information about a product the recipient purchased. The ban does not extend to non-commercial messages, such as political messages (which is why so many of us received such texts in recent months).

Federal rules require the following for commercial email sent to a mobile phone (including emails that are forwarded by text):

  • Identification – The email must be clearly identified as a solicitation or advertisement for products or services;
  • Opt-Out – The email must provide easily-accessible, legitimate, and free ways for the recipient to reject future messages from the sender;
  • Return Address – The email must contain legitimate return email addresses, as well as the sender’s postal address.

What qualifies as “consent”?  Under the FCC’s rules, texts and commercial email messages may be sent to a mobile phone if the recipient previously agreed to receive them. For texts that are commercial, that consent must be in writing; for non-commercial, informational texts, the consent may be oral.

For commercial email, consent may be oral or written. Senders must reveal the name of the entity that will be sending the messages and, if different, the name of the entity advertising products or services. All commercial email messages sent to after such consent is given must allow the authorization to be revoked. Senders have 10 days to honor requests to opt out.

More information is available at the FCC’s Consumer and Governmental Affairs Bureau website.

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